Garcia v. State , 2016 Ark. 402 ( 2016 )

Cite as 2016 Ark. 402
SUPREME COURT OF ARKANSAS.
No. CR-16-714
RENE GARCIA Opinion Delivered November 17, 2016
APPELLEE
V. PRO SE MOTION FOR
ENLARGEMENT OF TIME TO FILE
STATE OF ARKANSAS APPEAL BRIEF; MOTION TO FILE
APPELLEE BELATED APPEAL
[APPEAL FROM THE
WASHINGTON COUNTY CIRCUIT
COURT, NO. 72CR-12-1865]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In October 2013, appellant Rene Garcia was convicted of two counts of rape
involving a thirteen-year-old girl and was sentenced to an aggregate term of 600 months’
imprisonment with 120 months’ suspended. His convictions and sentences were affirmed
on direct appeal by the Arkansas Court of Appeals. Garcia v. State, 2015 Ark. App. 673.
Garcia filed a timely petition for postconviction relief pursuant to Rule 37.1 of the
Arkansas Rules of Criminal Procedure (2015). He alleged that he had been denied effective
assistance of appellate counsel and that the trial court had violated his right to due process
by allowing an amendment of the nature and degree of the charges and by excluding a video
“proving that the suspect on the video was not the accused standing trial.” The trial court
denied the petition without conducting an evidentiary hearing, and Garcia filed a timely
notice of appeal. Now pending before this court is Garcia’s motion for an extension of time
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to file his brief, and a second motion styled “Motion to File a Belated Appeal,” which
requests permission to file a belated brief.
When it is clear from the record that the appellant cannot prevail on appeal of an
order that denied postconviction relief, we dismiss the appeal. Wheeler v. State, 2015 Ark.
233, 463 S.W.3d 678 (per curiam). As it can be determined from the record that Garcia
could not prevail, the appeal is dismissed, which renders the motions moot.
Garcia’s claims for relief focused on allegations that appellate counsel failed to timely
file an appellate brief. However, Garcia could not demonstrate prejudice because, due to
the dilatory conduct cited in his Rule 37.1 petition, Garcia’s original appellate counsel had
been replaced and new appellate counsel was appointed. Garcia’s remaining allegations were
conclusory and lacked sufficient facts to establish a basis for postconviction relief. See
Henington v. State, 2012 Ark. 181, at 6, 403 S.W.3d 55, 60 (Conclusory allegations that are
unsupported by facts do not provide a basis for either an evidentiary hearing or
postconviction relief.). Moreover, Garcia’s conclusory allegations were based on claims of
trial-court error which are generally not cognizable in Rule 37.1 proceedings. See Green v.
State, 2013 Ark. 455, at 9 (per curiam) (Assertions of trial error, even those of constitutional
dimension, must be raised at trial and on direct appeal.).
Furthermore, while Garcia filed a timely Rule 37.1 petition, which was signed and
notarized, he failed to verify his petition as required by Rule 37.1(c). Randle v. State, 2016
Ark. 228, at 2, 493 S.W.3d 309 (per curiam). In 2006, Rule 37.1 was amended to more
clearly require that a Rule 37.1 petition be verified. Id. That amendment also required that
a form affidavit be attached to the petition, which Garcia did not attach to his petition. Id.
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Under Rule 37.1(c)(2015), Garcia was required to complete this form and to swear that he
had read the petition and that the facts stated in the petition are true, correct, and complete
to the best of the his knowledge and belief. Randle, 2016 Ark. 228, at 3, 493 S.W.3d 309,
310. Moreover, the affidavit must be executed before a notary or other officer authorized
by law to administer oaths, in substantially the following form:
AFFIDAVIT
The petitioner states under oath that (he) (she) has read the foregoing petition for
postconviction relief and that the facts stated in the petition are true, correct, and complete
to the best of petitioner's knowledge and belief.
__________________________
Petitioner’s signature
Subscribed and sworn to before me the undersigned officer this ____ day of
__________, 20___.
___________________________
Notary or other officer
This court has held that the verification requirement for postconviction petitions is
of substantive importance to prevent perjury. Id. at 3, 493 S.W.3d at 310; see also Bradley
v. State, 2015 Ark. 144, at 3, 459 S.W.3d 302, 304-05; Boyle v. State, 362 Ark. 248, 250,
208 S.W.3d 134, 136 (2005). Accordingly, pursuant to Rule 37.1(d) (2015) “the circuit
court or any appellate court shall dismiss any petition that fails to comply with subsection
(c) of this rule.” Bradley, 2015 Ark. 144, at 4, 459 S.W.3d at 305. Because Garcia failed to
comply with this substantive requirement of Rule 37.1(c), this appeal would be subject to
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summary dismissal even if Garcia’s Rule 37.1 petition had not consisted of conclusory claims
and allegations that were not cognizable under the Rule.
Appeal dismissed; motions moot.
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